Citation Nr: 0306945
Decision Date: 04/10/03 Archive Date: 04/14/03
DOCKET NO. 99-17 239 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a low back disorder
(spondylolisthesis, L5-S1).
2. Entitlement to service connection for residuals of
bursitis, acute, precalcaneal, bilateral.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Tanya A. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from December 1957 to April
1958.
This matter is before the Board of Veterans' Appeals (Board)
following a Board Remand of November 2000. This matter was
originally on appeal from a March 1999 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
Waco, Texas.
FINDINGS OF FACT
1. There is clear and unmistakable evidence that the
veteran's low back disorder
pre-existed his entry into service; the competent medical
evidence of record shows that there was no increase in
severity of the veteran's low back disorder during service.
2. The competent medical evidence does not demonstrate that
the veteran currently
has a bilateral heel disorder upon which compensation
benefits may be established.
CONCLUSIONS OF LAW
1. A low back disorder (spondylolisthesis, L5-S1) was not
aggravated during
active service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West Supp.
2002); 38 C.F.R. §§ 3.159, 3.303, 3.306 (2002).
2. Residuals of bursitis, acute, precalcaneal, bilateral were
not incurred in active
service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West Supp. 2002);
38 C.F.R. §§ 3.159, 3.303 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Post-Board Remand and the Veteran's Claim Assistance Act of
2000
Pursuant to the Board's November 2000 Remand, the RO afforded
the veteran a VA examination in July 2002 and obtained a
medical opinion. In correspondence dated in February 2001,
the RO provided the veteran with notice of the Veteran's
Claim Assistance Act of 2000 (VCAA) and VA's duties
thereunder. The VCAA redefines the obligations of VA with
respect to the duty to assist and includes an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. 38
U.S.C.A. §§ 5103, 5103A (West Supp. 2002); 38 C.F.R. § 3.159.
The RO advised the veteran of what he must do to support his
claims. The RO also advised the veteran that it would
retrieve his treatment records from the VA Medical Centers in
Dallas, San Antonio, and Kerrville as well as obtain his
disability determination records from the Social Security
Administration (SSA). In correspondence dated in April 2002,
the RO provided the veteran with additional notice of the
VCAA. The RO advised the veteran of what the evidence must
show to establish entitlement to service connected
compensation benefits. The RO requested information and
evidence from the veteran that concerned his assertion that
he served on active duty for an additional period of service
and received a medical discharge. The claims file indicates
that the veteran did not produce such information or
evidence. Thereafter, the RO reviewed the veteran's claims
and issued the November 2002 Supplemental Statement of the
Case (SSOC) which confirmed the prior denial. By a letter
dated in November 2002, the RO gave the veteran the
opportunity to make any comment desired within 60 days,
concerning the SSOC. Based on the foregoing actions, the RO
complied with the Remand instructions. Stegall v. West, 11
Vet. App. 268 (1998).
In so finding that the RO complied with the Remand
instructions, the Board also finds that the requirements
under the VCAA have been substantially met. The veteran was
provided adequate notice as to the evidence needed to
substantiate his claims and the reasons the claims were
denied. The RO provided the veteran with a copy of the March
1999 rating decision, June 1999 Statement of the Case,
December 1999 SSOC, and November 2002 SSOC. The RO has also
made satisfactory efforts to ensure that all relevant
evidence has been associated with the claims file. In
addition to providing the veteran with a VA examination, the
RO retrieved service medical records and VA treatment
records. The RO afforded the veteran a personal hearing
before a Decision Review Officer in November 1999. In
January 2002, the SSA responded that its current files no
longer contained any medical documentation. The veteran has
not made the RO or the Board aware of any other evidence
relevant to his appeal that needs to be obtained. Based on
the foregoing, the Board finds that all relevant facts have
been properly and sufficiently developed in this appeal and
no further development is required to comply with the duty to
assist the veteran in developing the facts pertinent to his
claims. Moreover, VA has fully discharged its duty to notify
the claimant of the evidence necessary to substantiate the
claims and of the responsibility of VA and the claimant for
obtaining such evidence. Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). Accordingly, the Board will proceed
with appellate review.
Service Connection
A veteran is presumed to be in sound condition upon entry
into service, except for any defects noted at the time of
examination for entry into service. 38 U.S.C.A. § 1111
(West 1991). The presumption of soundness can be rebutted
only by clear and unmistakable evidence that such a
disability existed prior to service. 38 C.F.R. § 3.304(b).
Service medical records show that the veteran's December 1957
induction examination report noted that the veteran had
congenital lordosis, not considered disabling. Thus, the
veteran is shown to have a back disorder that pre-existed
service. 38 C.F.R. § 3.304(b).
Service medical records show that the veteran was seen in
December 1957 for bilateral heel pain. X-rays revealed
minimal stress fractures of both os calci. The diagnosis was
bursitis acute, precalcaneal bilateral, cause unknown. He
was hospitalized for six weeks. The veteran was seen in
February and March 1958 for complaints of bilateral heel pain
and back pain. The veteran reported trauma to the dorsum of
the right foot that occurred three days prior. The veteran
was re-admitted to the hospital with a diagnosis of bursitis,
acute, precalcaneal bilateral. The veteran's heels were
treated and the hospital records noted that the fracture of
the heels were no further problem and had caused no
difficulty throughout the entire hospitalization.
The hospital records also noted that the veteran related a
history of low back problems that consisted mostly of pain
particularly after heavy exertion. The veteran related that
in 1955, he consulted medical aid for his back problems. He
reported that x-rays revealed spondylolisthesis at the L5-S1
interspace with one-quarter space inch forward displacement
and evidence of Scheuermann's disease in the lower lumbar
vertebra. The examiner noted that records were obtained from
the Children's Medical Center in Dallas, Texas to
substantiate the above history. A physical examination of
the veteran's lower back was conducted and x-rays were taken.
The diagnosis was spondylolisthesis, grade one, L5-S1,
existing prior to enlistment. It was noted at the conclusion
of the veteran's hospital stay that the pain was not as
severe as it was on admission. In April 1958, the Board of
Medical Survey found that the veteran had a nonacceptable
defect and recommended his discharge from service.
A pre-existing disease will be considered to have been
aggravated by active military service where there is an
increase in disability during such service, unless there is a
specific finding that the increase in disability is due to
the natural progress of the disease. 38 U.S.C.A. §§ 1137,
1153 (West 1991); 38 C.F.R. § 3.306(a). Aggravation may not
be conceded where the disability underwent no increase in
severity during service on the basis of all the evidence of
record pertaining to the manifestations of the disability
prior to, during, and subsequent to service. 38 C.F.R. §
3.306(b).
The veteran presented testimony that he suffered an acute
injury to his lumbar spine at age 15, but maintained that the
problem resolved. He testified that he had no back problems
when he entered service. He claimed that he injured his back
prior to his second hospitalization for his heels and
believed that his back disorder was aggravated by his fall.
The service medical records do not note that the veteran
suffered a back injury; they only note complaints of back
pain. While the veteran is competent to describe his
purported back injury and symptoms, he has not been shown to
possess the requisite medical expertise needed to render an
opinion on the medical question of whether his pre-existing
back disorder underwent an increase in severity during
service. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The
Board of Medical Survey found that given the physical
examination, x-ray and laboratory findings, and short period
of service, the condition existed prior to enlistment and
underwent no permanent aggravation. Thus, service medical
records show that the veteran's low back disorder underwent
no increase in severity during service.
VA treatment records dated from May 1983 to July 2002 show
the earliest documented complaints of low back pain occur in
1990. An August 1990 psychological assessment noted that
the veteran reported that he had occasional back problems due
to a congenital problem. A March 1998 x-ray of the lumbar
spine revealed mild scoliosis with severe degenerative joint
disease between L4 to L5 with a narrowed disc. There was L5
spondylolysis with Grade I spondylolisthesis. A March 1998
record showed that during a hospitalization for an unrelated
disorder, it was noted that the veteran's degenerative joint
disease was considered an acute problem because the veteran
did not require treatment for this disorder during his stay.
July 1998 records showed complaints included low back pain
and showed that the veteran received a lumbar epidural
steroid injection. A December 1998 record noted complaints
of back pain due to the veteran's participation in a walking
group. The veteran discontinued the group. In a March 1999
follow-up, veteran reported that the lumbar epidural steroid
injection helped him. An impression of a June 2000 magnetic
resonance imaging of the lumbar spine was minimal
degenerative change. Lastly, a July 2002 record noted that
the veteran was being treated by a specialty clinic for
complaints of low back pain. The foregoing post-service
treatment records do not demonstrate or suggest that the
veteran's back disorder underwent an increase in severity
during service. Accordingly, on the basis of all the
evidence of record pertaining to the manifestations of the
back disability prior to, during, and subsequent to service,
aggravation is not conceded. 38 C.F.R. § 3.306(b). Service
connection for a pre-existing low back disorder is not
warranted. 38 C.FR. §§ 3.303, 3.306.
In regard to the claimed bilateral heel disorder, the veteran
presented testimony on a history of chronic heel pain since
his discharge from service. He claimed that he went to see a
private doctor for his feet several times over the course of
40 years. In response to the question of whether he ever
attempted to obtain the private treatment records, the
veteran responded that it was "just an office visit" and
that two of the doctors had been deceased for 20 to 25 years,
so he had no idea if the records existed. In the veteran's
Substantive Appeal, he maintained that he also had ankle
problems due to the heel stress fractures he sustained during
service.
VA treatment records dated from May 1983 to July 2002 are
absent any complaints of bilateral heel pain. Treatment
records show that in September 1987, the veteran complained
of left ankle swelling and tenderness, but in connection with
a left collateral ligament sprain of his left leg that he
sustained during a baseball game. In May 1990, the veteran
was seen for complaints of constant pain and possible
fracture to the left ankle and foot, but this was due to a
recent 'slip and fall.' The July 2002 VA examination report
shows that the veteran complained of bilateral heel and ankle
pain. A physical examination revealed bilateral ankle pain.
The examiner noted an impression of chronic bilateral heel
pain that began during service. The examiner, however, noted
that stress fractures usually heeled and did not cause any
further problems. The examiner maintained that the current
pain was not related to the veteran's calcaneal stress
fractures but was in the ankle joint itself. It was noted
that x-rays of the ankles and calcanei revealed findings that
were normal for the veteran's age.
Thus, according to the July 2002 VA examiner and the physical
examination, the veteran's in-service stress fractures were
acute and transitory and resolved with no residual chronic
disability. The Board notes that the mere fact of an in-
service injury is not enough; there must be a chronic
disability resulting from that injury. There is no post-
service medical evidence of treatment for a bilateral heel
disorder. The veteran's claimed bilateral heel disorder
appears to be manifested by subjective complaints of pain
only. The Board notes that pain alone, without a diagnosed
or identifiable underlying malady or condition, does not in
and of itself constitute a disability for which service
connection may be granted. Sanchez-Benitez v. West, 13 Vet.
App. 282 (1999), appeal dismissed in part, and vacated and
remanded in part sub nom. Sanchez-Benitez v. Principi, 259
F.3d 1356 (Fed. Cir. 2001). In the absence of competent
medical evidence that the veteran has a disability of the
heels upon which compensation benefits may be established,
the requirements for establishing service connection have not
been met. 38 C.F.R. § 3.303.
As the preponderance of the evidence is against the veteran's
claims, the "benefit of the doubt" rule is not applicable.
38 U.S.C.A. § 5107(b) (West Supp. 2002).
ORDER
Service connection for a low back disorder
(spondylolisthesis, L5-S1) is denied.
Service connection for residuals of bursitis, acute,
precalcaneal, bilateral is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.